The Arkansas State Board of Chiropractic Examiners has fined
physical therapist Michael Teston, of Little Rock, Arkansas,
$10,000 for practicing chiropractic without a license. The action
was based on the claim that he had manipulated a patient's spine.
The Arkansas Board of Physical Therapists has ruled that Teston's
treatment was mobilization, not manipulation, and was therefore
within the lawful scope of physical therapy. However, the chiropractic
board concluded that his treatment was manipulation, which is
reserved licensed chiropractors and physicians, The chiropractic
board's ruling is part of a longstanding chiropractic campaign
intended to stop physical therapists from doing what chiropractors
consider to be chiropractic. About two years ago, the American
Chiropractic Association sought (unsuccessfully) to prevent Medicare
from paying for manipulation performed by physical therapists.

The brief below was filed as part of Teston's appeal to the
Circuit Court. Contributions to his defense fund should be sent
to ArPTA fund for Michael Teston,, c/o Jennifer Coleman, 9 Shackleford
Plaza, Suite 1, Little Rock, AR 72211. Additional
information is available on Teston's Web site.

BRIEF FOR PLAINTIFF

INTRODUCTION

Michael Teston, a licensed physical therapist, appeals an Order
entered against him by the Arkansas State Board of Chiropractic
Examiners ("Chiropractor Board") that is captioned "Findings
of Fact, Conclusions of Law and Order" ("Order").
The Order is attached hereto as Appendix, Tab 1. The Chiropractor
Board entered the Order based on its finding that Mr. Teston had
practiced chiropractic in the State of Arkansas without a license
in violation of the Arkansas Chiropractic Practices Act, A.C.A.
§§ 17-81-101 et seq. (the "Chiropractic
Act").

The issue before the Chiropractor Board was whether Michael
Teston administered treatment to his patients that was (1) a "mobilization"
that he is specifically permitted to perform as a licensed physical
therapist by the Arkansas Physical Therapy Act A.C.A., §§
17-93-101 et seq. (the "Physical Therapy Act")
or (2) a "manipulation," that to some extent, he, as
a licensed physical therapist, is prohibited from performing under
the Chiropractic Act. The Chiropractor Board found that Mr. Teston's
treatments were "manipulations" that constitute the
unauthorized practice of chiropractic and fined him $10,000.00.

The Order violates the Chiropractic Act that grants physical
therapists, like Mr. Teston, an exemption from the definition
of the practice of chiropractic under the Chiropractic Act. Furthermore,
the Chiropractic Act is unconstitutional. As a result of these
infirmities, the Order should be reversed and the Chiropractor
Board's claims against Mr. Teston should be dismissed.

STATEMENT OF THE CASE

For more than twenty years, Mr. Teston has practiced as a licensed
physical therapist in Arkansas. Hearing Transcript, p.77,
ln 3-4.

During the period from January 22 to March 30, 2001, Mr. Teston
treated Katheryn Fryar who had been referred to him for physical
therapy by Dr. Robert Kennedy. Hearing Transcript, p. 77,
ln. 7-11.

On May 21, 2002, over 13 months after Mr. Teston had treated
her, Ms. Fryar submitted a complaint to the Chiropractor Board
claiming that Mr. Teston manipulated her spine by "popping
[her] cervical, thoracic and lumbar regions of the spine."
A copy of Ms. Fryar's handwritten complaint is State's Exhibit
2 in the Chiropractor Board hearing transcript. Hearing Transcript,
p. 232.

On October 17, 2002, the Arkansas Board of Physical Therapists
("Physical Therapist Board") considered Ms. Fryar's
and Mr. Hendrix's complaints and entered a Declaratory Order finding
the procedure that Mr. Teston was performing on Ms. Fryar and
Mr. Hendrix was "mobilization" within the scope of his
profession as a physical therapist under the Physical Therapy
Act. A copy of the Declaratory Order of the Physical Therapist
Board is Defendant's Exhibit 1 in the Chiropractic Board hearing
transcript, Hearing Transcript, p. 237, and is attached
as Appendix, Tab 2.

On December 10, 2002, the Chiropractor Board received evidence,
including testimony, and heard argument of counsel concerning
the complaints of Ms. Fryar and Mr. Hendrix. A copy of the Notice
of Hearing is the first document of State's Exhibit 1 in the Chiropractic
Board hearing transcript. Hearing Transcript, p. 231.

In direct, irreconcilable contrast to the Physical Therapist
Board's Declaratory Order, the Chiropractor Board found that the
treatments Mr. Teston administered to Ms. Fryar and Mr. Hendrix
were 'manipulations,' not 'mobilizations.' The Chiropractor Board
further found that the 'manipulations' administered were treatments
reserved for licensed chiropractors and physicians, and since
Mr. Teston was not a licensed chiropractor or physician, he violated
the Chiropractic Act.

The Chiropractor Board issued its Order adjudging Mr. Teston
guilty under the Chiropractic Act of two violations of practicing
chiropractic without a license and assessed a civil penalty against
him in the amount of five thousand dollars for each of the violations.
See Appendix, Tab 1.

On January 17, 2003, Mr. Teston appealed the Order to this
Court.

SUMMARY OF ARGUMENT

The proceeding before the Chiropractor Board would appear to
be an action on seemingly isolated complaints by Ms. Fryar and
Mr. Hendrix, with the limited effect of determining whether Mr.
Teston engaged in the unauthorized practice of chiropractic. The
effect of the Order is much more expansive. It takes away from
all physical therapists, not just Mr. Teston, the right to perform
spinal 'mobilizations' on their patients, notwithstanding the
fact that physical therapists are specifically authorized to perform
'mobilizations' under the Physical Therapy Act. Accordingly, this
case involves critical issues that have broad implications in
a turf war that persists between chiropractors and physical therapists
who represent different, but related, professions of the healing
arts.

Physical therapists, as a matter of law, are not subject to
disciplinary actions by the Chiropractor Board under the Chiropractic
Act when they are performing 'mobilizations' in accordance with
the Physical Therapy Act. A licensed physical therapist, like
Mr. Teston, is exempt, as a matter of law under A.C.A. §§
17-81-302(3) and 17-81-303(d)(2) from application of the Chiropractic
Act for performing 'mobilizations.' It was unlawful for the Chiropractor
Board to issue the Order, because the Chiropractor Board ignored
the exemption Mr. Teston enjoys under the law as a licensed physical
therapist.

Physical therapists are entitled to administer 'mobilizations,'
but not 'manipulations.' These terms, however, are not defined
and distinguished in any meaningful way in the Chiropractic Act.
As a result, when it comes to these treatments, Mr. Teston and
other physical therapists cannot determine what treatments they
are permitted and prohibited from performing. The lack of definition
of and distinction between these terms makes the Chiropractic
Act unconstitutional because it is vague, ambiguous, and overly
broad.

The Order was unlawfully issued and constitutionally invalid.
The Order should be reversed and the claims against Mr. Teston
dismissed.

STANDARD OF REVIEW

On appeal from the decision of an administrative agency, the
circuit court may:

reverse or modify the decision if the substantial rights of
the petitioner have been prejudiced because the administrative
findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the agency's statutory authority;

(3) Made upon unlawful procedure;

(4) Affected by other error or law;

(5) Not supported by substantial evidence of record; or

(6) Arbitrary, capricious, or characterized by abuse of discretion.

A.C.A. § 25-15-212(h).

The Arkansas Administrative Procedures Act specifically provides
for challenging the Chiropractor's Board's Order on the ground
that the decision violates constitutional or statutory provisions.
Administrative agencies like the Chiropractor Board do not have
the power to decide constitutional issues; those issues are beyond
the Chiropractor Board's jurisdiction. SeeLincoln v.
Arkansas Public Service Commission, 313 Ark. 295, 300, 854
S.W.2d 330, 332 (1993). Accordingly, this Court considers de
novo the constitutional and statutory issues presented by
Mr. Teston.

ARGUMENT

1. Mr. Teston was Exempt from Prosecution under the Chiropractic
Act.

To penalize Mr. Teston as a physical therapist for the unauthorized
practice of chiropractic, the Chiropractor Board was required,
as a matter of law, to prove each of the following three elements:

(1) Mr. Teston's treatment of Ms. Fryar and Mr. Hendrix fell
within the definition of chiropractic treatment under the Chiropractic
Act;

(2) Mr. Teston was not licensed to practice chiropractic;
and

(3) Mr. Teston exceeded his authorized area of practice under
the Physical Therapy Act (A.C.A. § 17-93-102(6)) when he
treated Ms. Fryar and Mr. Hendrix.

See, A.C.A. §§ 17-81-302(3) and 17-81-303.
The Chiropractor Board failed to satisfy the third essential element
of its claim because the Order did not make any finding that Mr.
Teston exceeded his authorized area of practice defined in A.C.A.
§ 17-93-102(6) of the Physical Therapy Act when he treated
Ms. Fryar and Mr. Hendrix. For the Chiropractor Board to find,
as it did, that Mr. Teston's treatment was a 'manipulation' was
not enough. The Chiropractor Board also had the burden of proving
that Mr. Teston's treatment was outside the scope of his practice
area under the Physical Therapy Act, and that he was therefore
not exempt from enforcement of the Chiropractic Act against him.
The Chiropractor Board did not make this critical finding. Neither
the Chiropractor Board's Order nor any part of the record remotely
suggests that the Chiropractor Board found Mr. Teston was administering
treatment beyond the scope of his authority under the Physical
Therapy Act. The Chiropractor Board's failure to make this finding
is fatal to its Order as a matter of law.

The exemption for physical therapists from Chiropractic Act
enforcement actions is in A.C.A. § 17-81-302(3) as follows:

Nothing [in the Chiropractic Act] shall be construed to prohibit
or to require a license [under the Chiropractic Act] with respect
to any of the following acts:

(3) The practice of physical therapy it not being intended
by this chapter to limit, restrict, enlarge, or alter the privileges
and practices of any of these professions or branches of the
healing arts.

The exemption for physical therapists is further identified
in A.C.A. § 17-81-303(d)(2) which states:

Nothing contained in this subsection [of the Chiropractic
Act] shall be construed to limit or restrict the authority of
a licensed physical therapist to practice physical therapy as
defined in A.C.A. § 17-93-102(6) [of the Physical Therapy
Act].

A.C.A. § 17-81-303(d)(2).

The exemption created for Mr. Teston and other physical therapists
in A.C.A. § 17-81-303(d)(2) is a direct reference to the
provision that immediately precedes it in subsection (d)(1) that
provides:

It is unlawful for any person other than a physician licensed
to practice chiropractic or a physician licensed to practice
medicine to perform spinal mobilizations, spinal adjustments,
or spinal manipulations

While subsection section (d)(1) makes it unlawful for any person,
except a licensed chiropractor or physician, to perform "spinal
mobilizations," subsection (d)(2) specifically states that
this prohibition shall not be construed or applied to prohibit
or limit physical therapists from administering treatments they
are authorized to perform under the Physical Therapy Act.

But then the Chiropractic Act defines 'mobilization' as the
"Practice of Chiropractic" in A.C.A. § 17-81-102(6)(A)
where 'spinal mobilization' is defined together with 'spinal adjustments,
spinal manipulations as:

any type of pressure, force, thrust, or passive movement,
singular or pluralto the spinal vertebrae or their adjacent articulations
by hand or mechanical device or by other incidental adjustments,
for the restoration and maintenance of health. [emphasis added]

Given the over-lap between each Act's definitions of 'mobilization,'
which in the case of the Chiropractic Act is defined the same
as 'spinal adjustments' and 'spinal mobilizations,' and each Act's
identification of 'mobilization' as falling within their area
of authorized practice, it was incumbent on the Chiropractor Board,
before it penalized Mr. Teston, to prove that Mr. Teston's treatments
exceeded his authority as physical therapist under the Physical
Therapy Act. There is nothing in the record in this case or Order
to remotely suggest that Mr. Teston exceeded his authorized practice
area as a licensed physical therapist. Instead, the Chiropractor
Board ignored the Physical Therapist Board's Declaratory Order
and the statutory exemption granted to Mr. Teston as a physical
therapist. In so doing, the Chiropractor Board unlawfully violated
Mr. Teston's right to the physical therapist's exemption from
prosecution under the Chiropractic Act.

In stark contrast to the Chiropractor Board's failure to find
Mr. Teston exceeded his authority under the Physical Therapy Act
when he treated Ms. Fryar and Mr. Hendrix, the record is replete
with evidence that Mr. Teston's treatments were well within his
authority under the Physical Therapy Act. Most notably, in direct
reference to the scope of physical therapy practice defined in
A.C.A. § 17-93-102(6), the Declaratory Order issued by the
Physical Therapists Board concerning the complaints of Ms. Fryar
and Mr. Hendrix, states:

4. . . . it is the conclusion of the Arkansas State Board
of Physical Therapy that Michael Teston provided treatment that
is within the scope of practice of an individual providing physical
therapy services.

5. . . . it is the conclusion of the Arkansas State Board
of Physical Therapy that Michael Teston did not treat, or undertake
to treat ailments of human beings otherwise than by physical
therapy and as authorized by the Arkansas Physical Therapy Act.

Hearing Transcript, p. 237. There was also live testimony
at the hearing that Mr. Teston was acting within the scope of
his authority as licensed physical therapist. After listening
to the testimony of the Chiropractor Board's witnesses at the
hearing on this matter, Mr. Seth Coulter, the Chairman of the
Physical Therapist Board, testified that everything Mr. Teston
did in connection with treating Ms. Fryar and Mr. Hendrix was
within the scope of his practice as a physical therapist. Hearing
Transcript, p.111, ln 4-9.

Dr. Nancy Reese, Professor of Physical Therapy at the University
of Central Arkansas, who was also present during the entire hearing,
followed the testimony of Mr. Coulter. Dr. Reese, like Mr. Coulter,
testified that Mr. Teston's treatment of Ms. Fryar and Mr. Hendrix
fell within the scope of physical therapy. Hearing Transcript,
p.119, ln 18-21.

Perhaps the most telling testimony about not only the nature
of Mr. Teston's treatment, but the implications of this proceeding
on the physical therapy profession, came from Mr. Nat Grubbs.
In his sworn testimony, Mr. Grubbs explained that he is a licensed
physical therapist in Arkansas, not a chiropractor, and that the
treatments administered by Mr. Teston are the kinds of things
learned as part of an entry-level curriculum in physical therapy
school. Mr. Grubbs then admitted that he administers the same
kind of treatments to his patients that Mr. Teston administered
to Ms. Fryar and Mr. Hendrix. Hearing Transcript, p.157,
ln. 4-20 & 173, ln. 12-17.

The Declaratory Order of the Physical Therapy Board along with
the foregoing testimony, especially by Mr. Grubbs, illustrates
that it is quite likely that the Chiropractor Board believes the
entire physical therapist community, teachers and practitioners
alike, are teaching and performing treatments that the Chiropractor
Board has determined are violations of Arkansas law. While this
speaks volumes about the ambiguity that is addressed below, in
this analysis, the question is whether the Chiropractor Board
has the authority, in the first place, to conduct inquisitions
against physical therapists when the Chiropractor Board does not
first prove the physical therapists are acting beyond the scope
of their practice area under Physical Therapy Act. The answer
must be no, the Chiropractic Board has no authority.

As the Chairman of the Physical Therapy Board, succinctly explained
at the hearing, "we have two boards here that have a lot
of overlap." Hearing Transcript, p.105, ln. 13-14.
Accordingly, the Arkansas General Assembly created an exemption
in the Chiropractic Act for physical therapists, because it was
sensitive to and aware of the potential over-lap of these professions
and evidently wanted to protect physical therapists against charges
by the Chiropractor Board for unauthorized practice of chiropractic.
The General Assembly addressed this issue by limiting the Chiropractor
Board from sanctioning a physical therapist for chiropractic treatments,
including "spinal mobilizations, spinal adjustments or spinal
manipulations," unless the Chiropractor Board also proved
that the subject treatment was beyond the authority of the physical
therapist to perform under the Physical Therapy Act. The Chiropractor
Board cannot thumb its nose at the General Assembly's limitation,
ignore the statutory exemption for physical therapists from its
jurisdiction and the Declaratory Order of the Physical Therapists
Board that did have jurisdiction over Mr. Teston, and pronounce
a violation of the Chiropractic Act.

Mr. Teston is exempt, as a matter of law, under A.C.A. §§
17-81-302(3) and 17-81-303(d)(2) because A.C.A. § 17-81-303
cannot be applied to "limit or restrict" what Mr. Teston
is authorized to do under the Physical Therapy Act and has been
found he is authorized to do under the Physical Therapist Board's
Declaratory Order. If the Chiropractor Board wants to prosecute
Mr. Teston, then it must first overcome the exemption granted
to physical therapists by A.C.A. §§ 17-81-302(3) and
17-81-303(d)(2) and find that he was acting outside the scope
of his practice area as a physical therapist. It has made no such
finding. Accordingly, the Order is unlawful because it violates
the exemption granted to physical therapists under A.C.A. §§
17-81-302(3) and 17-81-303(d)(2) and should be reversed.

The Chiropractic Act's Prohibition Against a Physical Therapist
Performing a 'Manipulations' is Unconstitutional because it is
Impossible to Distinguish between 'Mobilizations' that Physical
Therapists are Authorized to Perform and 'Manipulations' that
they are Prohibited from Performing.

A statute is unconstitutional if a person of average intelligence
must guess at its meaning. Dougan v. State, 322 Ark. 384, 912
S.W.2d 400 (1995). Mr. Teston is fined $10,000 for performing
a 'manipulation' even though the Chiropractic Act limits prosecution
against physical therapists for 'manipulation' which is defined
in the Chiropractic Act the same as 'mobilization'. As the Chairman
of Physical Therapy Board, pointed out at the hearing, there is
"a lot of overlap" between the practice of chiropractic
and physical therapy. Hearing Transcript, p.105, ln. 14.
On one hand, the Physical Therapy Act permits a physical therapist
to perform 'mobilizations.' On the other hand, the Chiropractic
Act forbids 'manipulations.' Then the Chiropractic Act complicates
the issue further in A.C.A. §§ 17-81-302(3) and 17-81-303(d)(2)
by limiting prosecutions against physical therapists for 'manipulations,'
unless the physical therapist was exceeding his authority under
the Physical Therapy Act. Physical therapists, like Mr. Teston,
are thus forced to guess at the meaning of a dual statutory scheme.
It is therefore critical for the Chiropractic Act to identify
clearly what treatments fall within the scope of the statute.
It does not. Instead, the statutes that define the practice areas
of physical therapists and chiropractors create total confusion
concerning 'mobilizations.'

The Physical Therapy Act defines 'mobilization' as "passive
movement accomplished within normal range of motion, but excluding
spinal manipulation and adjustment." The Physical Therapy
Act, however, does not limit 'mobilization' to everything but
'spinal mobilization.' In fact, the inverse is true. While the
General Assembly defined the practice of physical therapy as 'mobilization,'
and could have excluded 'spinal mobilization' just as it did 'spinal
manipulation,' the General Assembly did not. Under a fundamental
principal of statutory construction, the express designation of
one thing is to be construed as the exclusion of another. Gazaway
v. Greene County Equalization Board, 314 Ark. 569, 575, 864
S.W.2d 233, 236 (1993). Accordingly, the Arkansas General Assembly's
specific exclusion of "spinal manipulation" and the
failure to exclude "spinal mobilization" must be construed
under the fundamental rules of statutory construction to mean
that licensed physical therapist in Arkansas are entitled to perform
"spinal mobilization." In contrast to the Physical Therapy
Act, however, the Chiropractic Act forbids anyone who is not licensed
as a chiropractor or a physician from administering "spinal
mobilization." A.C.A. §§ 17-81-102(6)(A) and 17-81-303(d)(1).

The Chiropractic Act lends little or no assistance to the task
of understanding the definitions of 'mobilization' and 'manipulation.'
As discussed in Point I above, the terms are defined in the Chiropractic
Act to mean the same thing. The Chiropractic Act explains that
the "Practice of Chiropractic" includes "spinal
adjustments, spinal manipulations and spinal mobilizations,"
all of which are defined as:

any type of pressure, force, thrust, or passive movement,
singular or plural to the spinal vertebrae or their adjacent
articulations by hand or mechanical device or by other incidental
adjustments, for the restoration and maintenance of health.

A.C.A. § 17-81-102(6)(A). In view of this definition,
it is difficult, if not impossible, to ascertain what the Chiropractic
Act defines as 'mobilization' as opposed to 'manipulation.'

Chiropractor Board member Dr. Beverly Foster perhaps sets the
stage best for verifying the confusion and guesswork related to
'manipulations' that physical therapists are prohibited from performing,
as opposed to 'mobilizations' that physical therapists are authorized
to perform. She explains,

I know that chiropractors have been trying to describe this
procedure for over 100 years amidst the rejection by the physical
therapy community of this procedure.

Hearing Transcript, p. 144, ln 17-21.

Amidst the century of confusion, it is no wonder the Chiropractor
Board found it necessary to call an expert witness to attempt
to explain and distinguish the terms 'mobilization' and 'manipulation.'
As the Chiropractor Board's expert, Dr. Edward B. Ashton, repeatedly
explained: "I was asked to render an opinion as to the difference
between manipulation and mobilization." Hearing Transcript,
p. 72, ln 10-12; "My purpose was to delineate the words manipulation
and mobilization." Hearing Transcript, p. 72, ln 23-24.
The mere fact that the Chiropractor Board found it necessary to
bring in an expert to explain the Chiropractic Act and its terms
speaks volumes about the guesswork, vagueness, ambiguity, and
down-right incomprehensibility of the definitions in the Chiropractic
Act.

While the focus here is on whether the Chiropractic Act is
vague and ambiguous, it is significant that any clarity that the
Chiropractor Board's expert attempted to bring to the subject
matter is immaterial and cannot be considered by this Court. "There
is a strong consensus among the jurisdictions, amounting to a
general rule, that witnesses may not give an opinion on a question
of domestic law or on matters which involve questions of law."
31A Am.Jur 2d, Expert and Opinion Evidence §136 (1989). The
Arkansas Supreme Court has stated that this rule extends to experts
in matters of statutory construction. The Court explained,

So in ascertaining the meaning of a statute the court will
not be governed or influencedby the view
or opinion of any or all of the members of the legislature, or
its legislative committees or any other person.

In this case, Dr. Ashton's testimony is thus not important
from the standpoint of what he says about the law or whether Mr.
Teston violated it, but rather demonstrates Mr. Teston's point
­ the Chiropractic Act is too poorly written for the average
person to understand.

It is worth noting that Dr. Ashton not only defined statutory
terms for the Chiropractor Board, but worse yet, he concluded,
as an expert, based on his definitions, that Mr. Teston had performed
an illegal 'manipulation' as opposed to a permitted 'mobilization.'
This was the ultimate issue in this case. With regard to Mr. Teston's
treatments of Ms. Fryar, Dr. Ashton stated, "I would classify
that as manipulation and adjustment, moving outside the normal
range of motion to achieve an audible result." Hearing
Transcript, p. 66, ln. 6-8. As to Mr. Teston's treatment of
Mr. Hendrix, Dr. Ashton stated, "I would call that a manipulation."
Hearing Transcript, p. 67, ln. 17.

Pure and simple, when Dr. Ashton testified about 'mobilizations'
that are permitted as opposed to 'manipulations' that are not,
he was defining what was legal and what was not. His further testimony
that Mr. Teston's treatment was a 'manipulation' was a legal conclusion
that Mr. Teston had violated the Chiropractic Act. This is impermissible.
It is hornbook law that an expert opinion that amounts to a legal
conclusion is not admissible evidence. 31A Am.Jur.2d, Expert
and Opinion Evidence §136 (1989). If there is any doubt
that Dr. Ashton gave a legal conclusion in his testimony, Assistant
Attorney General Kim Evans, the attorney for the Chiropractor
Board, laid that doubt to rest when, in her closing arguments,
she succinctly explained to the Chiropractor Board:

You need to decide whether any part of Mr. Teston's treatment
protocol constituted a manipulation. That's why you're here today.

Hearing Transcript, p. 219, ln 15-16.

The problems with Dr. Ashton's expert testimony are compounded
by the fact that he was not testifying about how the terms 'mobilization'
and 'manipulation' are defined in Arkansas law. He admitted in
his testimony that he had never even read and was completely unfamiliar
with Arkansas law concerning these terms. Hearing Transcript,
p. 70, ln. 22 ­ p. 71, ln. 2.

If the statutes were not already confusing enough, Dr. Ashton
brings a whole new dimension to the definition of the terms 'mobilization'
and 'manipulation.' He explains, that a 'manipulation' is moving
"outside the para-physiological range to get an audible release
to bring about the changes or to make that segment more normal."
Hearing Transcript, p. 63, ln. 23 ­ p. 64, ln 2. Setting
aside for the moment what it means to "move into the para-physiological
range," Dr. Ashton identifies 'manipulation' as a maneuver
that causes a "cracking sound" (Hearing Transcript,
p.63, ln 18) and distinguishes it from 'mobilization' by a "popping
sound" (Hearing Transcript, p.140, ln 20).

The problem with Dr. Ashton's definitions is that they are
not the definitions in the Chiropractic Act or the Physical Therapy
Act. There is no mention in either of the Acts about 'pops and
crackles,' much less whether those sounds have anything to do
with whether a treatment is a 'mobilization' or a 'manipulation.'
In fact, neither Act makes any direct or indirect reference to
any kind of joint noise.

Nevertheless, the Chiropractor Board apparently joined Dr.
Ashton in using his new, uncodified definition, because throughout
the hearing there are no less than twenty-five references concerning
whether Mr. Teston's treatments caused a 'pop or crackle.' The
new definitions of 'manipulation' and 'mobilization' were critical
to the Chiropractor Board in its case against Mr. Teston, because
the only evidence it had that Mr. Teston might have done something
wrong was the complainants' testimony that their joints popped
and snapped. The Chiropractor Board's focus on this issue is manifested
best in an exchange at the hearing between the Chairman of the
Chiropractor Board and Dr. Ashton; when the chairman ask,

when you manipulate a joint you get cavitation which then
results in the popping sound or this noise which is based on
what the Complainant has spoken of?

Hearing Transcript, p. 140, ln 13-21.

The Chiropractor Board spent so much time discussing joint
noise because it was looking for some simple way to distinguish
between 'mobilizations' and 'manipulations,' and resolve the confusion
that, by Dr. Foster's admission, has been ongoing for 100 years.
Hearing Transcript, p. 144, ln 17-24. The obvious problem
with the Chiropractor Board's solution is that Mr. Teston was
not on notice under the law that his fate under the Chiropractic
Act was going to be dictated by whether there were noises in the
joints when he performed his treatments. Similarly if "moving
outside the para-physiological range" is something that physical
therapists cannot do, then the law needs to tell them that. As
Dr. Reese explained, "I think that's part of the confusion
is that that's not a term [para-physiological range] that the
physical therapy or medical literature uses." Hearing
Transcript, p.130, ln 12-15. 'Para-physiological range' is
certainly not a term that is used in either the Physical Therapy
Act or the Chiropractic Act.

The mere fact that Chiropractic Board found it necessary to
resort to experts and alternative non-statutory ways to define
'manipulations' and 'mobilization' and distinguish them illustrates
that the Chiropractic Act is vague and ambiguous. Mr. Teston should
not be made to suffer for treatment he performed based on definitions
and distinctions that do not appear anywhere in the law. He should
not be made to suffer for violation of statutes that are so confusing
about what is permitted and prohibited that he is not on fair
notice of his legal rights.

The United States and Arkansas Constitutions prohibit the confusing
regulatory scheme confronting Mr. Teston and his physical therapist
colleagues. It is a bedrock of constitutional jurisprudence that
"a statute which either forbids or requires the doing of
an act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application
violates the first essential of due process of law." Connally
v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct.126, 127, 70
L.Ed. 322 (1926). Accordingly, Arkansas courts must judge whether
a statute is sufficiently precise to provide due process of law
by determining if the statute fairly warns a man of average intelligence
of proscribed conduct. Jordan v. State, 274 Ark. 572, 578, 626
S.W.2d 947, 950 (1982). The norm by which the Supreme Court determines
whether a statute is unconstitutionally vague is whether it lacks
ascertainable standards of guilt such that a person of average
intelligence must necessarily guess at its meaning and differ
as to its application. Dougan v. State, Id. at 402. The test regarding
vagueness of a statute is whether people of common intelligence
have to guess at its meaning. Newton v. State, 271 Ark. 427, 430,
609 S.W.2d 328, 330 (1980).

The Arkansas Chiropractic Practice Act that, on one hand, prohibits
Mr. Teston's performance of "spinal mobilization," and
the Arkansas Physical Therapy Act, on the other hand, which authorizes
Mr. Teston's performance of any "mobilization," fails
to place Mr. Teston on fair notice of the proscribed conduct.
In Jones v. State, 333 Ark. 208, 211, 969 S.W.2d 618, 620 (1998),
the Arkansas Supreme Court stated, "[t]he law must give fair
warning in definite language of the prohibited act." If a
statute does not give fair warning of what it proscribes or is
otherwise vague, then it is unconstitutional. The Arkansas Supreme
Court further stated, "a statute is void for vagueness if
it is so broad that it becomes susceptible to discriminatory enforcement."
Id.

The decision of the Chiropractor Board is fundamentally flawed
because the Chiropractic Act is vague, ambiguous and overly broad,
and therefore, unconstitutional. The Order based on the unconstitutional
Chiropractic Act should be reversed.

CONCLUSION

The transcript of the Chiropractor Board's hearing in this
matter reads more like an advisory committee meeting in a legislative
session than an adversarial administrative proceeding. Over 230
pages of transcript in a hearing that consumed an entire day were
devoted almost exclusively to trying to figure out what the General
Assembly meant by the terms "mobilization" and "manipulation."
The scope of Mr. Teston's physical therapy practice and that of
his colleagues were weighed in a balance by members of the Chiropractor
Board who, as chiropractors, are engaged in treatment for patients
that overlaps and is similar to those administered by physical
therapists. Not surprisingly, the Chiropractor Board staked out
its territory by declaring Mr. Teston's treatment as a physical
therapist was not the 'mobilization' he is permitted to perform,
but instead, was 'manipulation' that invades the province of chiropractors.

As a matter of law, the exemption granted under A.C.A. §§
17-81-302(3) and 18-81-303(d)(2) of the Chiropractic Act in cases
concerning 'manipulations' and 'mobilizations' stands guard against
such abusive prosecutions by the Chiropractor Board against physical
therapists, but the Chiropractor Board ignored the exemption.
Despite the Chiropractor Board's defiance, the exemption applies
to Mr. Teston as a licensed physical therapist who was conducting
himself in accordance with the Physical Therapy Act. The Order
and the proceedings leading up to it were an invasion of Mr. Teston's
legal right to be exempt from prosecution in this case, and was,
therefore, unlawful.

Moreover, as a matter of constitutional due process, Mr. Teston
was not on fair notice of what he is prohibited from doing under
the Chiropractic Act. The interplay between the Chiropractic Act
and the Physical Therapy Act makes it impossible for physical
therapists and chiropractors or the public to distinguish between
'mobilizations' that physical therapists are permitted to perform
and 'manipulations' that physical therapists are prohibited from
performing. The inability of physical therapists and chiropractors
to discern from the law what is permitted and what is prohibited
makes the Chiropractic Act, and the Order that it is based on,
unconstitutional.

The Order in this case should be reversed and the case against
Mr. Teston dismissed, because the Order is unlawful under statutory
exemptions in the Chiropractic Act and because the Chiropractic
Act is unconstitutional.

Respectfully submitted,

GILL ELROD RAGON

OWEN & SHERMAN, P.A.

425 West Capitol Avenue, Suite 3801

Little Rock, Arkansas 72201

(501) 376-3800

By:_______________________________________

John P. Gill ABA #62007

Derrick M. Davidson ABA #90214

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing pleading was
served by first class mail, postage prepaid, on the attorney of
record below on the 25th day of August, 2003: